It’s hoped one of the scheduled witnesses – Annmarie Ryan, who was a solicitor with the Chief State Solicitor’s office during the O’Higgins Commission of Investigation in 2015 – will be able to shed light on a bewildering matter that was revealed on Monday.

Specifically, the matter is this:

How did claims about a meeting in Mullingar in August 2008 – attributed to Supt Noel Cunningham who was present at the meeting – end up on a document sent to the commission from the then Chief State Solicitor Eileen Creedon’s office, only to be proven false by a taped recording of that meeting produced by Sgt Maurice McCabe and, later, Supt Cunningham’s own notes and report on that same meeting?

Ms Ryan is the third witness scheduled to appear today.

The first is former General Secretary at the Department of Justice Noel Waters, who stepped down from his role on November 28 last, within hours of former Justice Minister Frances Fitzgerald’s resignation.

The second is Head of Legal Affairs at An Garda Siochana Ken Ruane.

But, to return to the bewildering letter from the Chief State Solicitor…

Readers will recall how the tribunal is currently looking at what happened in terms of the then Garda Commissioner Noirin O’Sullivan’s legal strategy during the O’Higgins Commission of Investigation between May 2015 and December 2015.

This commission, overseen by Judge Kevin O’Higgins, was set up to look at about a dozen Garda investigations in the Cavan/Monaghan area between 2007 and 2010, following complaints made by Sgt Maurice McCabe about these investigations.

At the outset of this commission, on Friday, May 15, 2015, Colm Smyth SC, for the then Garda Commissioner Noirin O’Sullivan, was questioning retired Chief Supt Colm Rooney, whom Mr Smyth also represented, when a legal row broke out.

This occurred after Mr Smyth explained that his instructions were to challenge the integrity, credibility and motivation of Sgt McCabe.

Mr Smyth’s stance prompted Sean Gillane, SC for the commission, to question the relevance of Mr Smyth’s line of questioning.

Michael McDowell SC, for Sgt McCabe, questioned the same and asked why he wasn’t given any notice of it, which he said left him “very, very deeply shocked”.

At the tribunal on Monday, Kathleen Leader BL, for the tribunal, pondered:

“The facts of the issues under investigation [at the O’Higgins Commission of Investigation] either stood up or did not, irrespective of any attitude that Sergeant McCabe might or might not take. It is in that context that it might be difficult to see how any issue of credibility could properly arise at all at all.”

In any event…

Mr Smyth had this exchange with Judge O’Higgins on that afternoon of May 15, 2015:

Smyth: “…my instructions are to challenge the integrity certainly of Sergeant McCabe and his motivation.”

O’Higgins:“The integrity?”

Smyth:“His motivation and his credibility in mounting these allegations of corruption and malpractice.”

O’Higgins: “There is a difference. In relation to the question of credibility, as I have already indicated, that is an everyday matter. One can suggest to a witness that his evidence shouldn’t be believed because of something but an attack on somebody’s credibility, on his motivation or integrity is something that really doesn’t form part of this Inquiry. It would be necessary I think for you to go further and say that the complaints and the actions of Sergeant McCabe on your instructions were motivated by, his motivation was dishonest or wrong. In other words that he made these allegations not in good faith but because he was motivated by malice or some such motive and that impinges on his integrity. If those are your instructions from the Commissioner, so be it.”

Smyth: “So be it. That is the position, Judge.”

O’Higgins: “Those are your –”

Smyth: “Yes, as the evidence will demonstrate, Judge.”

After an adjournment, during which Mr Smyth checked with Noirin O’Sullivan about his instructions, and Ms O’Sullivan made two phone calls to the Department of Justice, Mr Smyth returned to the commission and said: “My instructions are re-confirmed.”

Mr McDowell SC, for Sgt McCabe, then requested that notice be given to him of what An Garda Siochana were going to put to Sgt McCabe.

This notice came the following Monday morning in the form of a five-page 20-point letter from the then Chief State Solicitor Eileen Creedon, who’s now a High Court judge.

This was the letter in full:

Mr. David J. O’Hagan,

Re: The Commission of Investigation…

Dear Mr. O’Hagan,

As directed by the Judge in the course of hearing on Friday, the 15th May 2015 we hereby provide the factual issues to be put to Sergeant Maurice McCabe:

1. In summer 2004, both Sergeant McCabe and a colleague applied for the vacant position of Sergeant in Charge of Bailieboro Garda Station. Sergeant McCabe was successful and took up the duties of Sergeant in Charge in October 2004.

2. In January 2006, Sergeant McCabe made a complaint against this colleague which resulted in a disciplinary sanction being imposed on the colleague.

3. The colleague applied for a transfer to another Garda station in December 2006 which request was refused for operational reasons due to the supervisory needs of Bailieboro station.

4. In December 2006, the colleague and his wife, on behalf of their daughter, made a complaint against Sergeant McCabe. Chief Superintendent Colm Rooney duly appointed Inspector (now Superintendent) Noel Cunningham to carry out a formal Garda investigation into the complaint.

5. Inspector Cunningham completed his investigation and forwarded the Garda Investigation file to the office of the DPP on or about the 19th of February 2007. Inspector Cunningham stated in his report to the DPP “taking all matters into consideration, including the question of whether the event happened, constituted a breach of the criminal law, it is felt that there is no ground for a criminal prosecution.”

6. The Director Of Public Prosecutions communicated the decision not to initiate any form of action against Sergeant McCabe and the observation was made that it was doubtful that the allegation could constitute a crime at all. The said directions were issued by way of a letter dated 5th April 2007 to the Cavan State Solicitor. Inspector Cunningham had requested that the directions from the DPP were to be forwarded for his attention rather than addressed in the usual way to the station and he received the directions, as he had requested, marked for his attention.

7. Upon receipt of said directions, Inspector Cunningham undertook the task of informing the parties to the complaint of the outcome of the investigation and the directions of the DPP. He advised the colleague and his wife on the 24th April 2007.

8. On the same day (the 24th April 2007) Inspector Cunningham sought to make an appointment with Sergeant McCabe to similarly advise him of the outcome of the investigation and the reasons from the DPP. However Sergeant McCabe was on sick leave from the 24th of April 2007 to the 21st of May 2007. Sergeant McCabe initially refused but subsequently agreed to meet on the 8th of May 2007.

9. On the 8th May 2007, Inspector Cunningham met with Sergeant McCabe by appointment at the Bailie Hotel. Inspector Cunningham was alone but Sergeant McCabe was accompanied by Sergeant Regina McArdle who was present initially as AGSI representative and then welfare officer. Inspector Cunningham duly informed Sergeant McCabe of the outcome of the investigation and the responses/directions of the DPP.

10. On 15th and 17th October 2007, there were two incidents in which Sergeant McCabe had an encounter with the wife and daughter, respectively, of Mr D. Following these incidents, Sergeant McCabe raised with Superintendent Clancy the issue of dissemination of the DPP’s directions which were given at the conclusion of an investigation into an allegation assault against Sergeant McCabe. Sergeant McCabe stated that he was of the view that the colleague’s family were unaware of the DPP’s directions. He stated that he was aware that Inspector Cunningham had met the colleague’s family concerning the outcome of the DPP’s directions. As a consequence, on the 22nd October 2007, Superintendent Clancy sent a minute to Inspector Cunningham in Monaghan seeking his observations on the issue.

11. Superintendent Clancy recalls having a meeting with Sergeant McCabe at the beginning of February 2008. At that meeting, Superintendent Clancy ascertained from Sergeant McCabe that he had no desire to have the colleague’s family prosecuted for the incidents he complained about. Superintendent Clancy asked Sergeant McCabe to convey his attitude in this matter by way of a written report as the Superintendent wished to have his views recorded on file. Sergeant McCabe stated that he would forward a report indicating that he did not wish to have the colleague’s family prosecuted. At the same meeting, Superintendent Clancy informed Sergeant McCabe that he had been in contact with Inspector Cunningham on the issue of the dissemination of the DPP’s directions. Superintendent Clancy informed Sergeant McCabe that Inspector Cunningham had communicated the DPPs directions to the colleague’s family on 24th April 2007. Sergeant McCabe then stated that he wished to view the actual written direction given by the DPP. Sergeant McCabe stated he felt that he should be ‘exonerated’ by the DPP. Sergeant McCabe stated that he would make written application to the Superintendent to have the DPP’s written directions shown to him. On 7th February 2008, Superintendent Clancy sent a minute to Sergeant McCabe giving the outcome of his enquiries with Inspector Cunningham on the issue of dissemination of the DPP’s directions.

12. On Tuesday, 26th February 2008, Superintendent Clancy received an envelope marked personal containing a report dated the 25th February 2008 from Sergeant McCabe. In this report, Sergeant McCabe made a number of allegations of incidents which allegedly occurred as far back as 2004 against Mr D and other unnamed members of Bailieboro Garda Station. Sergeant McCabe acknowledged that he had received Superintendent’s Clancy’s minute of 7th February 2008. Sergeant McCabe asked for full disclosure of the D.P.P.’s directions. “I urge you, if you can, to asked[sic] the DPP to allow the full DPP directions to be conveyed to me and the other party, in particular Mrs. D., in his particular case due to the fact that all parties work in close proximity and I would really appreciate it. That is all I am asking.”

13. Superintendent Clancy immediately forwarded this report to the divisional officer, Chief Superintendent Colm Rooney, recommending that the allegations made by Sergeant McCabe be investigated. In the meantime, Superintendent Clancy sought sight of the written directions as given by the DPP. Having carefully viewed the content of the DPP’s directions, the Superintendent decided that he would adhere to the DPP’s guidelines and that he would not request release of the document. On 11th March 2008, Superintendent Clancy met Sergeant McCabe and gave him the outcome of his decision.

14. Sergeant McCabe was unhappy with the outcome of the decision of the DPP, as he believed that the decision ought to have completely exonerated him rather than recording that there was not sufficient evidence to proceed against him.

15. In or around the same time Sergeant McCabe presented Superintendent Clancy with a series of operational issues for his attention, which were of a type which would normally have been dealt with by the Sergeant in Charge of the station.

16. Sergeant McCabe sought an appointment to see Chief Superintendent Colm Rooney and this was facilitated in June/July 2007. At the meeting Sergeant McCabe expressed anger and annoyance towards the DPP. He demanded that Chief Superintendent Rooney communicate with the DPP to seek a declaration of innocence from the DPP in relation to the allegation. Chief Superintendent Rooney advised Sergeant McCabe of the policy of the DPP in dealing with such issues, a policy which Sergeant McCabe was himself professionally aware of. Chief Superintendent Rooney told Sergeant McCabe that he could not seek such a declaration on Sergeant McCabe’s behalf from the DPP.

Chief Superintendent Rooney pointed out to Sergeant McCabe that from his own experience of dealing with criminal files to the DPP he was aware of the DPP’s role to determine if sufficient evidence was available on a file to direct a prosecution. Chief Superintendent Rooney advised sergeant McCabe that it is not the Garda Commissioner’s policy that An Garda Síochána, challenge the Director of Public Prosecutions on his decisions. Chief Superintendent Rooney further pointed out to Sergeant McCabe that, as a private citizen, it was open to him to write to the Director of Public Prosecutions is he so wished to seek the declaration he required.

17. In March 2008 Sergeant McCabe applied to be redeployed from his position as Sergeant in Charge of Bailieboro Garda Station and this request was granted.

18. Pursuant to the complaint made by Sergeant McCabe on the 26th February 2008 to Superintendent Clancy, Chief Superintendent Colm Rooney appointed Inspector Noel Cunningham to carry out an investigation.

19. Having been appointed to investigate Sergeant McCabe’s complaint against Superintendent Clancy, now Superintendent Noel Cunningham, having attempted on a number of occasions to meet with Sergeant McCabe, eventually met with Sergeant McCabe by appointment on the 25th August 2008 in Mullingar Garda Station, to receive details of his formal complaint. Superintendent Cunningham was accompanied to this meeting by Sergeant Yvonne Martin. Notes were taken at the meeting and countersigned by Sergeant Martin and a detailed report of the meeting was prepared by Superintendent Cunningham, and its contents agreed with Sergeant Martin and forwarded to Chief Superintendent Rooney. In the course of this meeting Sergeant McCabe advised Superintendent Cunningham that the only reason he made the complaints against Superintendent Clancy was to force him to allow sergeant McCabe to have the full DPP directions conveyed to him.

20. It is understood that Sergeant McCabe had further interactions with assistant commissioner Derek Byrne and Chief Superintendent Terry McGinn prior to the investigation carried out by them.

Yours faithfully…

On Monday, the tribunal specifically heard that point 19 was a “serious error”.

Ms Leader BL, for the tribunal, asked:

“…a serious error seems to have been made as to the purport of the Mullingar meeting of the 25th of August 2008. Where did the notion come from that Sergeant McCabe turned up to that meeting and announced that his issues with Superintendent Clancy had been manufactured by him in order to create some kind of a pressure wave so that senior management would bow to his demand that the DPP’s letter exonerating him would be circulated?

“This idea, which somehow got into paragraph 19 of counsel’s letter to the Commission on behalf of Commissioner Nóirín O’ Sullivan, is not contained in the report of Superintendent Cunningham and it does not accord with the tape that Sergeant McCabe had made of the meeting.

Supt Cunningham first said “no”; then “I don’t remember seeing it, possibly”; and then “I don’t want to catch anybody short by saying something that I — I have so many documents given to me, Judge, with respect, so many documents in a short period of time.”

He then went on to say he believed it was the first time he was reading paragraph 19.

Meanwhile…

Questions may also arise about the paragraphs which claim Sgt McCabe was angry with the DPP and that he wanted the DPP’s directions challenged; that he wanted the DPP to exonerate him and that he wanted the DPP to declare his innocence.

These claims appear equally bewildering as paragraph 19, as Sgt McCabe knew the DPP’s directions and they did exonerate him.

Readers should note that the claims in the Chief State Solicitor letter – alleging Sgt McCabe wanted the DPP to exonerate him – chime with evidence that was given just before the legal row kicked off at the commission on May 15, 2015.

At that point, Colm Smyth SC, for Ms O’Sullivan and several gardai including Supt Cunningham and retired Chief Superintendent Colm Rooney, asked Mr Rooney about a meeting he had with Sgt McCabe.

Chief Supt Rooney told the commission:

“It was probably late 2007, yes, definitely. He came to my office and he was in that state and he demanded of me that I write to the Director of Public Prosecutions and I challenge a decision that Director of Public Prosecutions had made in respect of him.”

Readers may wish to recall, in terms of the DPP directions mentioned above, they relate to a retrospective allegation which was made against Sgt McCabe by a 14-year-old daughter of a Garda colleague of Sgt McCabe’s in 2006 and, following an investigation by then Inspector Noel Cunningham, the DPP directed that no prosecution take place.

Ms D made the allegation in a statement to gardai in December 2006, about 11 months after her father, Mr D, lost his position as sergeant in charge of the crime unit and was reverted to regular sergeant, following a report made by Sgt McCabe against Mr D for attending the scene of a suicide after drinking alcohol.

On April 5, 2007, the DPP issued its directions as follows:

Dear Sir,

I acknowledge receipt of your letter dated 1st March 2007 together with copy Garda investigation file. I agree with you and the Guards, that the evidence does not warrant a prosecution. There was no admission. The incident as described by the injured party is vague. It appears that it was only when she was eleven/twelve that she decided that whatever occurred was sexual in nature.

Even if there wasn’t a doubt over her credibility, the incident that she describes does not constitute a sexual assault or indeed an assault.

Further, the account given to her cousin [redacted] differs in a number of respects to that given to her parents and the Guards. There is no basis for a prosecution.

Sgt McCabe learned of the directions on the day they were issued (April 5, 2007) when he was verbally briefed of them by the Cavan State Solicitor Rory Hayden.

But he kept his knowledge of the directions to himself.

The tribunal heard that Sgt McCabe and Supt Cunningham didn’t eventually meet to discuss the DPP’s directions until May 8, 2007.

In the summer, Supt Cunningham told the tribunal that when he relayed the DPP’s directions to Sgt McCabe he didn’t specifically read out the DPP’s directions to him.

Instead, he told the tribunal:

“I told him there was no prosecution, I believe it was due to lack of evidence, I didn’t actually take a note of it.”

On August 9, 2013, after Ms D received counselling from RIAN counsellor Laura Brophy, during which Ms D repeated the 2006 claim, Ms Brophy unnecessarily re-referred – in so much as it had been previously referred and investigated – the matter to Tusla but conflated the “humping” allegation with an allegation of rape which was wholly unrelated to both Ms D and Sgt McCabe.

This false allegation of rape sat in an unallocated Tusla file until May 2014 when it was simultaneously found to be a mistake and yet travelled officially all the way up to the then Garda Commissioner Noirin O’Sullivan’s office – even though certain gardai involved in moving it up the chain of command knew about the 2006/2007 allegation and knew that there was no such rape allegation made by Ms D against Sgt McCabe in 2006/2007.

The tribunal has already heard that, within days of the mistake in the Tusla referral being discovered, the then Assistant Commissioner Kieran Kenny received an amended referral but never passed it on to Ms O’Sullivan.

Sgt McCabe didn’t learn of the false rape allegation until a letter was sent to him on December 29, 2015.

The false rape allegation was still on file in the commissioner’s office until the tribunal began earlier this year.

The Disclosures Tribunal is also examining the knowledge and circulation of this false rape allegation among senior gardai and members of the media.